John McLean

“ The will is not void on account of the institution of a universal heir-the effect is only to give to him that portion of the estate disposable by testamentary donation, which in this case is one-third; the residue will pass to the heirs ab intestato. The acceptance of the donation by the instituted heir is not more necessary than the acceptance of the succession by the legal heirs in either case, it may be express or implied-and when material, is a question of fact for the jury. ”

“ That if the husband conveys the wife's lands, and possession is taken under the conveyance, and is continued for thirty years, and is open and notorious, and then the husband dies, any subsequent claim by the wife is overturned by the presumption of fact arising on these circumstances, that she has conveyed the property. ”

“ They had really no interest in the property-nothing to convey-nothing which the presumption of a conveyance can reach.
'Neither a descent, cast, nor the statute of limitations, will affect a right, if a particular estate existed at the time of the disseisin, or when the adverse possession began, because a right of entry in the remainder-man cannot exist during the existence of the particular estate, and the laches of tenant for life will not affect the party entitled after him.' (Jackson v. Schonemaker, 4 J. R., 402; Jackson v. Johnson, 5 Cowen, 75, 103.) ”

“ The facts in evidence did not authorize any presumption of the execution of the instrument by the married women. It was insisted at the trial, that the supposed deed should be admitted, that it might be submitted to the jury, whether, under all the evidence in the cause, they would not presume a conveyance by them to the parties in possession. ”

“ And it seems that the plaintiff derived his title from two of the surviving daughters, Angelique and Helen, and their heirs; he therefore claims under Louis, Marie, Helen, and Angelique. It seems not to be contested that the property vested in the daughters, under the civil law, was paraphernal. A succession accruing to the wife during marriage is her paraphernal property, which she may administer without the consent or control of her husband. ”

“ The deed of 3d September, 1818, was duly acknowledged by Joseph Ortiz, and Eleanor, his wife, Joseph Minard, Auroria, his wife, and the execution of it was proved at the trial by proof of the handwriting of Thomas R. Musick, in whose presence it was signed and acknowledged. The execution of the deed of Reaume and wife is proved beyond controversy. Joseph Minard, Eleanor Ortiz, and Marceline Reaume, are the children and heirs of Marie Louise Minard, deceased, who was a daughter of Francis Moreau, and wife of Joseph Minard, deceased. ”

“ The act abolished all the rules of prescription under the Spanish law, and substituted a limitation of twenty years after action accrued, and, in case of disability by coverture, twenty years after it ceased. In 1820, it appears Mullanphy took possession of a part of the premises in controversy, and from that time retained possession. Some of the husbands had a life estate in the lands; but whether this was so or not is immaterial, as there is no bar to the claim of the plaintiff by the statute of limitations. ”

“ To our minds this is a monstrous proposition. The discussion of it is undertaken with the apology, that it was pressed with a great deal of zeal at the trial, and is, perhaps, to constitute the principal point in the cause in this court. ”

“ On the foregoing testimony the defendant moved the court to instruct the jury as follows:
1. If the jury find that Francis Moreau, in his lifetime, was the owner of the lot in controversy; that he died prior to 1804, and that his two daughters, Mrs. Mallette and Mrs. Cerr e, took their husbands prior to 1804, then the several interests of said daughters in said lot became upon their marriage, and was their paraphernal property. ”

“ The property a woman inherits during marriage is paraphernal. (Allen v. Allen, 6 Rob. R., 104.) The woman is accustomed to bring, besides her portion, (dot,) other property, which is called paraphernalia, and which is, or are, the property and things, whether (muebles) personal or (r eeles) real, which wives retain for their separate use. From this definition, it follows: 1. That if the wife gives to the husband this property, with the intention that he may have the dominion (senorio) of it, he shall possess it during marriage ”

“ It punishes, by nothing less than forfeiture, the not doing what it provides shall not be done. But this singular view is supposed to be supported by books. The plaintiff in error claims that it has been so decided in Melvin v. Proprietors of Locks and Canals on the Merrimack River, 16 Pick., p. 140. The case is this: Joana Fletcher, by her father's will, became in 1771 tenant in common of an undivided half of the premises in suit, and was in peaceful possession till her marriage to Benjamin Melvin, in February, 1777, when her husband in her right went into possession. ”

“ Felix Pingal was entitled as tenant by the courtesy to his wife's lands, although neither the husband nor the wife was actually seized during the coverture. (4 Kent's Com., 29, 30; 1 Hilliard R. Est., 111; Reaume v. Chambers, Appendix.)
5. When a large amount of property is in controversy, desperate means are sometimes resorted to, for the purpose of holding possession. Such is the attempt to set up, in bar of this suit, the pretended will of Francis Moreau. ”

“ The plaintiff gave in evidence a sheriff's deed, dated the 24th of February, 1853, which recites a judgment in favor of David Clary and William Waddingham, against Angelique Mallette, Pierre Willemin, and Melanie Cerr e, his wife, Felix Pingal and Josephine Cerr e, his wife, by her guardian, for $455.31, on which an execution was issued, and levied on the defendant's land, designated as survey 1,480, and the same was sold the 19th of February, 1853, to the plaintiff Boyle, to whom the above deed was given, which purports to convey all the right and interest of the defendants. ”

“ Marie Collin was married in 1805, and so remained till March 22, 1840. Angelique Mallette was a married woman from 1804 till April 19, 1844. Helen Cerr e was married at the date of the supposed deed, and so remained till 1838. The common law was introduced into the Territory of Missouri, January 19, 1816, (1 Ter. Laws Mo., 436,) and placed these women under all the disabilities belonging to that code. When their property was sold by their husbands, there was no possible mode in which they could interpose a legal objection. ”